Three Steps to Save Democracy

Molly Prow

In the early 16th century, Niccollò Machiavelli wrote that “a free government must be ruled not by the whim or caprice of any person or persons, or even of the majority of citizens, but by law. A truly free government is a government of laws, not of men.” John Adams echoed these words more than two centuries later, and the idea became a central tenet in the US Constitution (Ball, Dagger, and O’Neal, p. 27-28). Our nation of laws has survived numerous democratic tipping points in its history –– the Civil War is the most obvious –– but our current crisis challenges the interpretation of the laws around which our constitution is built. For months prior to the 2020 election, former president Trump sowed doubts of widespread election fraud. On election eve, as news outlets called the race for President-Elect Biden, Trump stubbornly declared victory. He and his allies launched 62 lawsuits primarily in six swing states and lost all but one. When state election audits refuted his claims of election fraud, and courts backed up the findings, Trump allies pressured state-level Republican and election leaders to challenge legal protocols, “find” votes, and put forth competing slates of electors who would cast votes for him. They looked for paths that would allow him to declare martial law, order armed forces to seize ballots and voting machines, and force a new election. More than 100 Representatives and 15 Senators vowed to challenge the electoral counts of key states, and Trump pressured Vice President Pence to refuse to certify that count (Cummings, Garrison, & Sergeant, USA Today). A violent mob of about 2,500 people breached the US Capitol Building and temporarily suspended the peaceful transfer of power, seemingly at the encouragement of Trump allies. Trump, who had sworn to uphold the Constitution, instead perverted our “rule of law” and undermined the unwritten democratic norms that support it. The process exposed many legal and constitutional weaknesses that threaten our quarter-millenium democratic experiment. Our laws and institutions require a great deal of thoughtful repair to ensure the evolution of democracy for another 250 years, but because of extreme polarization, we would be lucky to enact just three stop-gap reforms to ensure democracy survives even two to six years. First, we should quickly reform the Electoral Count Act to prevent state and Congressional corruption that could overturn the next federal election. Second, Congress should pass voter reforms to ensure that, regardless of which state they live in, all Americans have an equal opportunity to cast votes for the representatives or referendums of their choice. Finally, we should codify a nationwide system for nonpartisan redistricting that ends extreme gerrymandering and ensures that every vote counts.

It is critical that we clarify and reform the Electoral Count Act of 1887 prior to the next federal election. Distorted interpretations of the Act’s vague, arcane language fueled the chaos leading up to the January 6th insurrection. These misinterpretations are being used by some states to pass laws that could allow them to override their state’s popular votes and appoint opposition electors instead. State-level roles charged with protecting election integrity are being politicized, and a slew of anti-democratic candidates are campaigning on their willingness to overturn future elections to reelect Trump (Leonhardt). These possible actions could be neutralized by Electoral Count Act reforms supported by both parties. In February 2022, a bipartisan group of more than 15 US Senators announced draft legislation that makes it clear “the vice president has no power to reject a state’s elector,” ensures “state legislatures cannot appoint electors after Election Day…to overturn their state’s election results,” requires “that the electors appointed by a state reflect its popular vote,’’ and makes it more difficult “to sustain objections [to certifying a presidential election] without broad support by both chambers of Congress” (Broadwater). These reforms won’t address the unquestionably undemocratic nature of the Electoral College (FairVote.org), but they could prevent another attempt to subvert a free and fair federal election.

A second, more difficult step towards saving democracy would require Congress to establish minimal federal voting standards that guarantee equal access to the ballot box. The right to vote is a foundational value of democracy, yet it is becoming increasingly difficult to cast votes in many states despite the proven security of our elections. The Supreme Court first weakened that right when it struck down key voter suppression protections in 2013. In response, some states culled voter rolls and limited access to polling places or voting boxes. These efforts to reduce voter turnout became almost draconian after the 2022 election by prohibiting the provision of food or water to people waiting in line, outlawing the use of mass transportation to get voters to and from the polls, sharply curtailing absentee and early voting, and enacting strict and sometimes confusing voter registration requirements. Federal legislation could limit or end these state-level assaults on voting rights. According to Mercier (“How Democratic is the American Constitutional System”), the proposed John Lewis Voting Act “requires reasonable public notice for changes to voting policies and rules; outlaws early poll closures, [and] restores federal review of any changes to voting rules that could discriminate against voters based on race or background.” The proposed Freedom to Vote Act creates a federal holiday for election day, thus ensuring all voters can make it to open polls regardless of their work schedule. It “requires 15 days of early voting and protects voting by mail [and] provides for automatic voter registration.” Both of these critical pieces of legislation have passed the House but are being held hostage by the filibuster, “designed and used for decades to thwart civil rights legislation” in the Senate (Brennan Center, “The case against the filibuster”). There are many calls to eliminate the filibuster if only to pass these important voting rights bills, but even that move is being held hostage by a lack of will among Democrats. Our best chance to change that filibuster to pass these laws is to vote en masse this fall to elect more Senators who support voting rights reforms.

The third step required to save democracy is to address extreme gerrymandering and the passage of laws that ensure fair representation in every state. Partisan gerrymandering marginalizes the power of our individual votes by “packing” like-minded people into compact districts or “cracking” dissenting votes into dispersed districts that reliably lean toward an opposite party. This gerrymandering practice may be the single biggest contributor to our country’s extreme polarization; candidates win on narrow interests rather than building consensus and coalitions. Since our once-in-a-decade redistricting is already well underway, it is too late to impact the next few election cycles, but it is encouraging that many state courts are rejecting extreme maps in both Republican and Democratic states (Corasaniti & Epstein). State courts, however, tend to align with state politics, and state constitutions are easily amended. We need federal guidelines to ensure our votes will be counted fairly no matter where we live, and we should accomplish this before the next census and redistricting. There are multiple routes to ending gerrymandering. “Many reformers advocate for nonpartisan, independent redistricting commissions that will draw “fair” maps” (Corasaniti & Epstein). Even nonpartisan commissions have difficulty drawing fair maps in unbalanced urban and rural districts, but it's an improvement over the current system. A more novel approach is to draw larger, multi-candidate districts, a system widely used in Europe, which eliminates hyper-partisan primaries. Voters cast ballots that rank their top choices among candidates who may or may not be affiliated with major parties. It forces partisan candidates out of their comfort zones and into coalitions to win top rankings and builds representation with carried but aligned interests (FairVote.org). A third but untested option for ending gerrymandering is scientific: With Fairmandering, a model designed at Cornell University, a computer creates “election maps with fair outcomes – those that accurately reflect a state’s political leanings, and create enough competitive races to ensure accountability and treat each party symmetrically.” It both honors local political sensibilities and promotes fair and competing districts (Lefkowitz, “‘Fairmandering’ draws fair districts using data science,” November 24, 2020). Congress needs to study and fund research into these and other gerrymandering alternatives to pass federal guidelines before 2030. It may be the single biggest change we can make to restore civility to our politics.

Saving democracy in the short term is critical to the long-term repair that lies ahead. The first step is to clarify and reform the Electoral Count Act so that partisan interests cannot hijack a state’s popular vote for president, and this should be enacted prior to the 2024 election. We should then enact federal voting reforms to safeguard the democratic principle of one vote for one person across all states; it’s time to end Jim Crow practices that attempt to prevent some Americans from participating in elections. We also need to lay the groundwork for ending partisan gerrymandering; it may be our best chance to heal the country of extreme polarization so we need to do the underlying work now to ensure its passage by 2030. These three steps will help the country take more controversial steps to protect democracy for next 250 years. Some examples: We need to have a serious discussion about the limits of free speech that promotes violence or that aids foreign interference in our elections. We need to define if and when disinformation constitutes warfare against the United States –– and when third-party boosting of that information crosses into treason. We need to discuss the possibility of codifying the democratic norms and guardrails that Trump ignored or destroyed, apparently to no consequence. Maybe, with the three immediate fixes to democracy in place, we could finally have substantial, civil conversations to address these larger issues.

Works Cited

Ball, Dagger & O'Neill, Political Ideologies and the Democratic Ideal, p27-28

Brennan Center: “The case against the Filibuster” https://www.brennancenter.org/our-work/research-reports/case-against-filibuster

Broadwater, Luke, “Overhaul of Electoral Count Act ‘Absolutely’ Will Pass, Manchin Says, The New York Times, Feb 6, 2022

Corasaniti, Nick & Epstein, Reid J., “As Both Parties Gerrymander Furiously, State Courts Block the Way,” The New York Times, Apr 4, 2022 https://www.nytimes.com/2022/04/02/us/politics/congressional-maps-gerrymandering-midterms.html?action=click&module=Well&pgtype=Homepage&section=US%20Politics

Cummings, William, Garrison, Joey, & Sergent, Jim, “By the numbers: Trump’s failed efforts to overturn the election”, USA TODAY, Ja. 6, 2021

FairVoting.org https://docs.google.com/document/d/1YPUlJb7ZEYYI-X875Zj3PprZrxT5cQWPZMwSUnHQDiM/edit#

Fowler, Christopher, & Fowler, Linda, “Here’s a different way to fix gerrymandering,” The Washington Post, Jul 6, 2021 https://www.washingtonpost.com/politics/2021/07/06/heres-different-way-fix-gerrymandering/

Lefkowitz, Melanie, “‘Fairmandering’ draws fair districts using data science,” Cornell Chronicle, Nov 24, 2020 https://news.cornell.edu/stories/2020/11/fairmandering-draws-fair-districts-using-data-science

Leonhardt, David, “America’s Anti-Democratic Movement” The New York Times, Dec 13, 2021 https://www.nytimes.com/2021/12/13/briefing/anti-democratic-movement-us-politics.html

Mercier, Anita, “How Democratic is the American Constitutional Syttem,” Spring 2022 Class Powerpoint